Human Rights in Ireland welcomes this guest post from Colin Lenihan. Colin is a trainee solicitor for KOD Lyons Solicitors a leading human rights & public interest law firm, who represent asylum seekers and other vulnerable migrants.

During Ireland’s last examination by the United Nations Committee Against Torture, in May 2011 the then Secretary General of the Department of Justice, Sean Aylward was questioned at length by committee members on issues around direct provision and Ireland’s international human rights obligations towards asylum seekers. In addressing this issue Mr Aylward stressed that the Irish State have consistently ensured the international human rights standards for all asylum seekers and he personally would lose sleep if he thought any asylum seeker fleeing persecution was denied shelter (see here and here).

While Mr Aylward may hold such high beliefs that the Irish State provides shelter for those seeking international protection in Ireland, many practitioners and advocates would be aware that in practical terms many asylum seekers in Ireland are forced into destitution following their expulsion from direct provision accommodation.

KOD Lyons recently represented a client who was expelled from direct provision. The client, who has a history of mental health and drug addiction problems, was expelled as a result of his behaviour in direct provision, which effectively rendered him homeless for a considerable period of time. As he is currently within the asylum process he was legislatively prohibited from seeking employment, accessing all forms of social welfare assistance or any homeless services. His extended period of homelessness exacerbated his ongoing mental health and addiction issues. KOD Lyons were successfully able to seek his re-admittance to a direct provision centre after arguing that the lack of access to any basic subsistence for asylum seekers would effectively constitute inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights.

Challenges have been brought before the courts in Ireland and the United Kingdom on the issue of expulsion from asylum accommodation centres and the right to a basic level of subsistence. In A.N. v Minister for Justice, Equality and Law Reform (discussed here, pp. 22-23)A.N. was an asylum seeker who was expelled from a direct provision accommodation centre due to his behaviour. The applicant suffered from mental health issues and was forced to live on the streets without access to shelter or money. While this case ultimately settled before a full hearing, many of the same inhuman and degrading treatment concerns were raised.

While acknowledging that the RIA House Rules permit the expulsion of asylum seekers in certain circumstances, it is imperative that consideration be given to any underlying mental health or behavioural disorders prior to making any expulsion decisions. It is also imperative that if the State consciously expels any asylum seeker from direct provision accommodation, an alternative basic level of subsistence should be offered. Failure to provide such would lead to serious breaches of international human rights obligations.

There has been much focus and comment, but no full State apology, for the role that institutions of the State and the Irish people as a whole played in permitting the operation of Magdalene Laundries for over eight decades. The mantra of “never again” rings hollow in light of Ireland’s current practices in containment and control of asylum seekers within the Direct Provision System (see Gavin Titley’s article on this for the Guardian in October 2012). Unable to work, provided with meals, shared accommodation with strangers and a meagre allowance of €19.10 per week: the system of direct provision in all its Dickensian glory. In Ireland, there was no parliamentary debate on the foundation of the Reception and Integration Agency (RIA). Ministerial circulars on the foundation of the system of direct provision were not (and are not) readily available to the public or to asylum seekers themselves. When I initially applied under the Freedom of Information Acts in 2007 for documentation held by the Department of Justice on the legal basis for direct provision, I was told there was no such documentation. I eventually gained access to much of the documentation through the Department of Social Protection,

It is important to note that there are very significant differences between the horrors of Magdalene Laundries and the system of direct provision: direct provision hostels are not workhouses, there is no evidence of systematic abuse and asylum seekers do have the ability to leave (although this is fairly illusory given that asylum seekers are barred from receiving any other form of welfare or State support). Rather than religious congregations in charge, private enterprises generally operate this system on behalf of the Reception and Integration Agency (RIA).